There was fury and embarrassment after Banksy’s latest work in Clacton-on-Sea was painted over – could its destruction have been contested?

Painting over Banksy’s latest work has proved an embarrassment for the local council responsible. Council officials had to admit that they hadn’t realised the work was by Banksy and, more pertinently, hadn’t realised it was satirising the anti-immigration subject of the mural.

But Banksy doesn’t seem to have been annoyed by the removal. His spokesperson has declined to comment on it and this doesn’t come as a surprise. Many other works made by the famous Bristol-based artist have been painted over in the past, or damaged – and no formal complaint has ever been made by him or his entourage.

He’s not exactly the average street artist, however. The other half of his work ends up screened and protected as tourist attractions, or the walls that they’re on are sometimes sold to high bidders.

But other street artists would take more offence if their works were destroyed. And in the UK at least, such artists cannot oppose the removal of their pieces. It’s not so simple as categorising it as vandalism, but stems from wider legislation on art and copyright. Artists are able to oppose any modification of their works (for example, distributing copies featuring an offensive caricature of a painting). But they cannot oppose the destruction of the original artworks: if someone buys a painting, then the buyer may decide to destroy it. This is why the property owner is free to whitewash the painted wall. They are the owner of the surface where the work is done and so can do with it what they please.

This is not the case in other jurisdictions, such as the US. There, artists are theoretically able to oppose the destruction of their work by property owners and developers. They are also technically able to request damages if the removal takes place (“society is the ultimate loser when works are modified or destroyed”, it was said in the US House of Representatives when passing this law.

But the US is certainly no street artist’s utopia. The destruction of artworks can only be opposed if they adhere to strict requirements. The law says that the work must be of “recognised stature”, and the artwork must not be illegal – it has to have been carried out with the authorisation of whoever owns the property, for example the owner of the wall or the train. If it is illegal, the artist cannot oppose the destruction.

This is what a US judge held in a late 90s decision in a case involving New York artists who created several widely loved murals and sculptures on walls and property that belonged to the city. When the city moved to develop the park, the artists took legal action to prevent the artworks’ destruction. They lost the case, as their works were illegal.

But even when permission is granted, the provisional and ephemeral nature of graffiti art also means that its destruction cannot generally be contested. This was seen at the New York outdoor art exhibit space 5Pointz, which had been known as the “United Nations” or “Mecca” of graffiti”. It epitomised the ability of street artists to spray paint the buildings without contravening the law. When the owners of the site announced their plans to knock the buildings down for a redevelopment, a group of street artists unsuccessfully sought an injunction in court to avoid the demolition.

They argued that the works were of such recognised statute that the Copyright Act allowed them to prevent its destruction. This was not accepted. 5Pointz is not a “work of visual art” within the meaning of the law and does not deserve protection against destruction, the judge said. Also, because the artists knew that the buildings upon which they were painted sooner or later would have been demolished, it was ruled there was no way they could be able to stop the removal of their works. The site is currently being demolished.

So opposing the destruction of graffiti works is nigh on impossible in the UK and very difficult in the US. The same is true of many other countries. Unfavourable legislation and the very essence of most graffiti works (illegality as well as their ephemeral and transient nature) stand in the way.

So street artworks are doomed to survive through photographs, surrounded by a bit of blurb about their heyday. But does that matter so much? After all, no street is alive if it always stays the same.

Enrico Bonadio does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.